tryz: Been to this dance many times as far as trying to dissect oral arguments.
Almost like being on the jury in a divorce case. First, you hear the wife's side and you conclude the husband is a no-good bum.
Then the husband takes the stand and tells his story. Now the wife is a bum.
What I got from WDDDD's audio is this:
1- the judges were not happy that of the six claims that World's could have appealed, they let 3 slip by the wayside and only appealed three. Three were thrown under the bus.
2- the judges wanted to know why WDDD didn't object to the denial of discovery. The Patent board denied WDDD's motion, and World's could have appealed since discovery was the way it could have been shown that Bungie was a RPI.
3- the panel kept asking why WDDD didn't accept that the PTB had the authority to decide issues and thus these issues were collaterally precluded from being raised here.
4-On the good side, the panel clearly realized that the burden of proof at the PTB level to show that Bungie was NOT a RPI was on Bungie itself. The PTB had forced that burden on World's, unquestionably an error. The judges did not like that at all and cited PTB language in that ruling that WDDD had the burden. Not legal. Not right. Burden was on Bungie.
4- Biggest problem for me: WDDD wanted this court to put aside the PTB decision that there was no privacy between ACTI and Bungie and rule that there was. The Panel said there might not be enough evidence available and they MAY REMAND THE CASE BACK TO THE PATENT BOARD. WDDD lawyer said there was sufficient cause (Page 30-32 of WDDD's brief) to give the panel the authority to do so. The panel (one judge in particular) said "I wouldn't want to take that leap to overturn the Patent Board on an issue where we have no testimony or cross-examination" (sic)
I listened once and this is my initial take. I will listen again, but both sides were unprepared to respond to the panel's questions and both sides simply talked over or around pointed questions from the judges, telling me (and them) that they didn't have the answers.
The panel has a few choices:
-decide that the board failed to accept the contract showing that Bungie was a RPI and
-that the board erred by putting the burden on WDDD instead of where it legally was supposed to be by statute- on Bungie, and rule for Worlds on the three issue it raised. We can't get back 6 claims because WDDD only asked for 3.
- While I don't see a ruling for Bungie at all, I can see a remand back to the PTAB. WDDD lawyer argued that the board will only rule again like it did before. Didn't seem to phase the panel
Wifi was raised, but the argument was that, while WIFI could have been used by WDDD to appeal on the basis of the WIFI decision, WDDD, while having the time to do so, failed to so appeal.
I think the panel was unhappy with both sides.
Just my opinion. Feel free to rip it up at will.
